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As mentioned below, the Supreme Court decided today what was billed to be the most significant property rights case of the Term, and probably since Kelo in 2005: Stop the Beach Renourishment v. Florida Dept. Environmental Protection.The decision doesn’t seem to be particularly earth-shattering in its result, but the opinions do give us quite a bit to analyze for its implications for property and land use law.

In this post I will give my first-day analysis of the lead opinion; in subsequent posts I’ll review the concurrences, round up what other commentators are saying, and highlight some issues for the future.I think that Stop the Beach will provide a good background for lots of discussion about land use law over the coming weeks and months.

I. The Breakdown of the Decision

The Court ruled 8-0 to affirm the judgment of the Florida Supreme Court that the petitioners did not suffer an uncompensated taking of property rights under the Fifth and Fourteenth Amendments.Justice Stevens did not participate.Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V.Justice Scalia’s opinion in Parts II & III (joined by C.J. Roberts, J. Thomas, & J. Alito) argued that the Constitution recognizes the concept of a “judicial taking,” even though the claim in this case did not warrant such a ruling.Justice Kennedy (joined by J. Sotomayor) concurred, but wrote separately to argue that the case did not require the Court to decide the judicial takings issue.Justice Breyer (joined by J. Ginsburg) also concurred by arguing that it was unnecessary to resolve the constitutional question.

II. Justice Scalia's Opinion of the Court

Justice Scalia wrote the lead opinion, which is the Opinion of the Court for Parts I, IV, and V.In the first Part, Justice Scalia (writing for the eight Justices who agreed in the disposition) first reviewed the common law rights associated with “littoral,” or coastal property, including the right of access, right to use the water, right to an unobstructed view, and the right to receive accretions and relictions to the littoral property.Now, whether a particular state subscribes to the public trust doctrine, or some other legal baseline for property rights in beachfront property, the typical regime starts with the basic recognition that the state owns the “wet sand”—the land from the sea up to the mean high-tide line—and private landowners own the “dry sand” above that line, but usually subject to public access easements or other restrictions.

The Opinion of the Court makes short work of the distinction between “accretion,” which is the gradual, imperceptible growing or shrinking of the coastline—where common law awards the land to the individual owner—and “avulsion,” which is a more “sudden and perceptible” addition or loss (caused by, e.g., a hurricane)—where the State, holding the property in public trust, remains the owner of the formerly submerged land.Justice Scalia’s Opinion notes that the Florida statutory scheme clearly delineates a program whereby the State may implement projects that “renourish” beaches by adding lots of sand, which allows the State to establish an “erosion control line” that effectively re-sets the property line.Because these State actions are more properly characterized as “avulsions” (even though they are caused by the government, and not natural forces such as a hurricane), they fit within the legitimate statutory scheme, and the property owners’ common law beachfront rights do not trump the State’s prerogative to do beach renourishment as a matter of constitutional takings law.

III. Justice Scalia's Plurality Opinion

While he wrote for a unanimous Court in the disposition of the case, the jurisprudential controversy will be over his Parts II & III.The meat of the Justice Scalia opinion, and what is certainly going to be the source of discussion, is his assertion that there can in fact be such a thing as a “judicial taking” within the scope of the Fifth and Fourteenth Amendments.In Part II.A., Justice Scalia sets forth his opinion that even though it is not the result here, there can in fact be such a thing as a (compensable) taking of property by a judicial decision.Noting that the “classic” case of a taking is a government acting through its legislative or executive branches to condemn title to private property through eminent domain or a regulatory taking, Justice Scalia insists that there is nothing in the Constitution that specifies which branch of government can be responsible for a taking: the Takings Clause, he writes, is “concerned simply with the act, and not with the governmental actor” (8).He makes much of the observation that first, state governments are not held to the same standards for separation of powers under the federal constitution, and that as a result, it shouldn’t matter which branch of a state government is responsible for an alleged deprivation of property rights.Justice Scalia articulates a test for “judicial takings” that is sure to be the baseline for arguments over the issue in years to come:

If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.

Justice Scalia’s Part II spends sections B and C tearing down the concurrences of Justices Kennedy and Breyer, so I’ll discuss those in a later post.For now, reading only the lead opinion of Justice Scalia, I think it’s safe to say that (1) it will be hard to argue that a court opinion effects a federal constitutional taking in the face of well-grounded state law; but that (2) the “judicial takings” issue is wide open for the future in property and land use law.

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Editors

Craig Anthony Arnold

Boehl Chair in Property and Land Use Professor of Law
Affiliated Professor of Urban Planning
Ph.D. Faculty in Urban and Public Affairs
Chair of the Center for Land Use and Environmental Responsibility,
University of Louisville